Thomas v. Hunter
| Decision Date | 01 March 1946 |
| Docket Number | No. 3217.,3217. |
| Citation | 153 F.2d 834 |
| Parties | THOMAS v. HUNTER, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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George Powers, of Wichita, Kan., for appellant.
Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
Before BRATTON, HUXMAN and MURRAH, Circuit Judges.
Petitioner, Richard J. Thomas, has appealed from the judgment of the trial court denying his petition for discharge from the custody of the respondent, under a writ of habeas corpus.
On October 16, 1941, while petitioner was out on parole or conditional release under a prior conviction, he was arrested and taken into custody by the United States Marshal of the Eastern District of Missouri. He was charged in an indictment filed November 13, 1941, with violation of the Dyer Act, 18 U.S.C.A. § 408. On November 21, 1941, and again on January 8, 1942, he attempted to escape from confinement while in the custody of the Marshal. He was indicted in separate indictments for each of these attempted escapes. He pleaded guilty to the charge under the Dyer Act and was tried and found guilty by a jury in each of the attempted escape cases. He was sentenced to serve a term of four years on the Dyer Act violation and to an additional sentence of five years each on the two escape charges. These two sentences were made to run consecutively with each other, and also consecutively with the sentence under the Dyer Act conviction. In all, petitioner was sentenced to a total term of fourteen years.
In his petition for the writ of habeas corpus and on his appeal before this court, petitioner makes two contentions, first, that the escape sentences were not in conformity with the statutory provisions of the Escape Act, 18 U.S.C.A. § 753h, and were therefore void, and that having served the sentence of four years under the Dyer Act charge, he is entitled to release; and, second, that he was denied the right to counsel at the time the verdict of the jury was returned into court and at the time of the sentence, and that the sentences therefore are void.
18 U.S.C.A. § 753h provides:
The requirement in the first part of the above section, that an additional sentence must be imposed for an escape or attempted escape, does not require that the convicted person be compelled to serve a greater number of years than the number of years imposed for the main offense. A sentence under one conviction is in addition to a sentence under another conviction, if it is a separate and complete sentence. Rutledge v. United States, 5 Cir., 146 F.2d 199. That it runs concurrently with a sentence for the same number of years under a former conviction makes it nonetheless an additional sentence, because if for any reason the convicted person is excused from serving the first sentence, he must nevertheless serve the second sentence. The latter portion of the Act provides that: "If such person be under sentence at the time of such offense, the sentence imposed hereunder shall begin upon the expiration of, or upon legal release from, any sentence under which such person is held at the time of such escape or attempt to escape." It is upon this provision in the statute that petitioner relies to sustain his first contention.
He argues that at the time of his two attempted escapes he was under sentence for the offense which he had committed prior to the commission of the Dyer Act offense and for which at the time of his arrest he was out on parole. He contends that the court therefore was required to make the two escape sentences begin to run from the completion of his original sentence, rather than from the completion of the sentence for the Dyer Act violation.
In Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808, the Supreme Court held that where one who was on parole or probation committed another offense for which he was arrested and sentenced, while he was incarcerated under the latter sentence he was imprisoned only thereunder, and the service of the original sentence was interrupted and the running of such sentence began again only at the completion of the new sentence. It was held that during the time he was serving the new sentence he was no longer in either actual or constructive custody under the first sentence. From this it follows that when appellant was arrested for the Dyer Act violation, the original sentence was interrupted and suspended. The original sentence being suspended, he was not under that sentence when he broke jail. Petitioner not having been under the original sentence at the time he broke jail, it follows that when the court passed the sentences for the jail break, the provision of the statute which he seeks to invoke did not apply to him.1
Furthermore, we think the proviso upon which petitioner relies means that where one is confined and actually serving a prior sentence when he escapes from custody, then the sentence for such escape must be fixed with relation to the expiration date of the prior sentence or with reference to the date on which one is thereafter legally released from confinement thereunder. It has no application where one is out on parole when he escapes from custody. The words of the statute are: "The sentence imposed hereunder shall begin on expiration of, or upon legal release from, any sentence under which such person is held at the time of such escape * * *."2 If petitioner's construction of the statutory proviso were correct, then the phrases "or upon legal release" and "under which such person is held at the time of such escape" would be meaningless and would be mere surplusage. If one is out on parole he is not held under the sentence.
Petitioner alleged that at the trial on the escape charges his "constitutional right to have the assistance of counsel was violated by the action of the judge in excusing counsel appointed by him from being present at the time of the rendition of the verdicts and imposition of sentences thereunder, without petitioner's consent thereto." In support of this allegation he stated that "immediately following the jury's retirement from the court room to consider for its verdicts, Mr. Frye asked Judge Moore for permission to be absent from the court while the jury was out, and Judge Moore granted him leave as asked for and when the court received the jury's verdicts about an hour later that day, Mr. Frye was not present in court at that time although he had been advised through instructions of the court that the jury was ready to submit its verdicts, and he, Mr. Frye, was not present immediately following the rendition of the jury's verdicts when sentences thereunder were pronounced." Petitioner further alleged that he did not competently and intelligently waive his right to counsel.
Respondent introduced as exhibits the docket entries and the record of judgment and the commitment in the trial court. The docket entries recite that with defendant's consent the court appointed J. Grant Frye to represent the petitioner; that arguments were made to the jury by respective counsel; that verdicts of guilty were returned and the defendant was sentenced. The journal entry of judgment recites that: "* * * came the United States Attorney, and the defendant Richard J. Thomas, appearing in proper person, and J. Grant Frye, Esq., his attorney, * * *." The trial court, apparently relying on the record evidence, refused petitioner the opportunity to testify concerning these allegations. This is urged as reversible error.
While there is a minority view, the great weight of authority is that in the absence of a charge of fraud, the judgment record of a court imports absolute verity and that it may not be challenged in a collateral proceeding by parol testimony.3 While there is some language in some decisions by the Supreme Court...
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Quillien v. Leeke, Civ. A. No. 69-475.
...in a collateral proceeding such as this by parol testimony. Tibbett v. Hand (C.C.A.Kan.1961) 294 F.2d 68, 72; Thomas v. Hunter (C.C.A. Kan.1946) 153 F.2d 834, 838; State v. Mayfield (1959) 235 S.C. 11, 23, 109 S.E.2d 716, cert. den. 363 U.S. 846, 80 S.Ct. 1616, 4 L.Ed.2d 1728; cf., however,......
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